Selections from Three Works. Francisco Suárez

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СКАЧАТЬ law, then this second precept will not relate to an evil deed, since—through the revocation of the earlier law—the evil of the [prescribed] deed is removed. The reason for our assertion thus becomes clear. For, in the first place, the [legislative] power in question is derived from God; and those things which are from God, are well ordered; therefore, the said power has been given for good and for edification, not for evil or destruction. And secondly, no inferior can impose an obligation that is contrary to the law and the will of his superior; but a law prescribing a wrongful act, is contrary to the law of God, Who prohibits that act; therefore, [the former law] cannot be binding, for it is not possible that men should be bound, at one and the same time, to do and to abstain from doing a given thing. Moreover, if a wrongful deed is prohibited by divine law, no law made by an inferior can annul the obligation imposed by the superior; consequently, [such an inferior] cannot impose an obligation, for his own part; and therefore, his law on the deed in question cannot be valid.

      It was to this justice of law, indeed, that St. Augustine referred, when he wrote (On Free Will, Bk. I, chap. v): ‘In my opinion, that is not law which is not just.’ Moreover, one may interpret as a reference to the same justice, the words of St. Augustine in another passage (On the True Religion, Chap. xxxi): ‘A founder of temporal laws, if he is a good and wise man, will consult the eternal law in order to discern, […] in accordance with its immutable rules, what from a temporal standpoint should be avoided or prescribed.’ Wherefore, just as the eternal law prescribes only that which is just, since this law is essential justice itself, even so, true human law ought to be a participation therein, and consequently cannot validly prescribe anything save that which is just and righteous; a condition which accords with the verse in Proverbs (Chap. viii [, v. 15]): ‘By me kings reign, and lawgivers decree just things.’

      5. In what way an act prescribed by law is characterized by positive righteousness. From the foregoing, we draw the further conclusion that the condition in question, even when positively interpreted, pertains to the essential nature of law; although it is not to be applied in one and the same manner to each individual [legal precept].

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      The first part of this statement may be demonstrated to be true on the basis of our preceding remarks; for if the act prescribed is not of itself evil and if it is prescribed by a superior, then, for this very reason, it may righteously be executed, since by virtue of the precept of the superior it acquires a certain righteousness, even though it may not always possess that quality inherently. For, even as an act not of itself evil becomes evil through the just7 prohibition of a superior, so an act not of itself either good or evil, will become good through a law which justly prescribes it; and accordingly, law always relates to a good act, since it either presupposes that the act is good, or causes it to be so.8

      Thus the second part of the same statement is also manifestly true. For, in some cases, it is presupposed that [certain] acts prescribed by law are of themselves good and righteous. Such acts acquire through law merely a necessary and obligatory character; since they were formerly optional and the failure to perform them was not evil, whereas such failure does become evil after the making of the law, and the act in question becomes essential to righteousness, manifest examples of this sort being found in the acts of hearing mass and of fasting, or in similar acts. Sometimes, on the other hand, a law is made with regard to a deed which is in itself indifferent; as in the case of laws concerning the carrying of arms, or abstaining therefrom, at a certain time or in a certain place, and similar matters. In such a situation, the act [prescribed] becomes good both by the efficacy [of the law] and by virtue of the end to which that law is directed. This righteousness ordinarily relates to some special virtue, in accordance with the capacity of the subject-matter with which the law is concerned, inasmuch as the said law establishes a certain moderation in regard to that [subject-matter]. Examples of this kind are found in the law of fasting, or the law prohibiting the use, at a stated time, of stated foods that are in themselves

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      a matter of indifference; and in other laws of a like nature. Sometimes, however, the righteousness may be a matter solely of obedience, or legal justice. Examples of this sort are the law which prohibits carrying arms, and other, similar laws.

      Thus law must be just from the standpoint of its subject-matter, in one of the ways above described.

      6. In what way a law concerned with the permission of evil is just. Nevertheless, an objection may be raised at this point, with respect to human laws which permit some evil and which apparently do not relate to what is just. Augustine (On Free Will, Bk. I, chaps. v and vi) discusses this objection at considerable length; and we shall return to the point later.

      For the present, I shall answer briefly that the subject-matter of such a law is not the evil deed involved, but the permission of that deed; and permission of an evil deed may in itself be good, inasmuch as God wills that it shall be granted; accordingly, a law of this sort deals with subject-matter that is just. And if it is urged that the permission is not the subject-matter but the effect of the law, I answer, first of all, that the permission does not result from the law, save in so far as [the latter] prescribes that the act in question shall be permitted, and not punished or checked; for otherwise, the true and essential principle of the law could not subsist, as is evident from its general nature, and as I shall explain more fully below.9 Secondly, if any one should venture to speak of the said act as being the subject-matter of the law, I would reply as follows: the act itself may be considered in either of two aspects; that is to say, as capable of being performed (in which sense it is evil), or [simply] as permissible, so to speak (an aspect in which it is not wrongful subject-matter, nor subject-matter contrary to reason). In other words, this act is not fit subject-matter from the standpoint of its capacity to be legally obligatory, but it is capable of being permitted, since with respect to the purpose of such [legal] power, it does not necessarily call for prohibition or punishment and is, therefore, in itself just subject-matter in relation to the law in question.

      7. From this [first] assertion, thus expounded, we are able to draw two inferences.

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      The first corollary: Righteousness is inherent in the nature of law; and the remaining conditions laid down by Isidore are reduced to this one [condition of righteousness]. One inference is as follows: to the said assertion, there pertains, most of all, the first condition laid down by Isidore (Etymologies, Bk. V, chap. xxi), namely, the condition that law shall be righteous, a requirement which is sufficiently clear from the very nature of the term. I shall add, moreover, that to this quality of justice in law, we may very well reduce all the conditions laid down by Isidore in the passage cited above, and also in the Decretum (Pt. I, dist. I, can. v), in which passage he first says: ‘Law will be all that which is established by reason’; that is to say, law ought to be in accord with reason; and this [in turn] is equivalent to requiring that law shall be just, in the sense explained above. Furthermore, this condition includes virtually all the justice of law, in its entirety. For law cannot be in absolute conformity with reason, unless it is just in every respect. Accordingly, St. Thomas (I.–II, qu. 95, art. 3) accepted this requirement, not as a special condition of law, but as a general one virtually including all other conditions, so that he does not discuss the others.

      8. Secondly, then, Isidore [Etymologies, Bk. V, chap. iii] requires of law, ‘that it shall be in harmony with religion’; a requirement which St. Thomas expounds in the place cited in connexion with human law, saying that law should be in harmony with religion, in so far as it ought to correspond to divine law. However, this correspondence consists simply in not prescribing what divine law prohibits, and in not prohibiting what divine law prescribes; so that, in like manner, it may be said that to be in harmony with religion is the same as to be righteous.

      Nevertheless, it is possible to extend the condition to apply to all law, and it is also possible to understand religion more exactly, as the true mode of worshipping the true God. For, in this way, it becomes clear СКАЧАТЬ